Great Bay Coalition to ask court to reconsider its case against DES over nitrogen levels

Saturday

Nov 17, 2012 at 3:15 AM

By Michelle Kingstonmkingston@fosters.com

DOVER — The Great Bay Municipal Coalition intends to file a motion of reconsideration after Merrimack County Superior Court declined to issue judgment last week on whether the state Department of Environmental Services was required to follow the New Hampshire Administrative Rulemaking procedures in developing and imposing nutrient criteria for the Great Bay estuary.This case began when the Great Bay Municipal Coalition, comprising Dover, Portsmouth, Rochester, Exeter and Newmarket, said DES failed to put the Numeric Nutrient Criteria for the Great Bay Estuary document into effect in June 2009, setting the water quality criteria for the nitrogen in the water.Once this document was created, DES declared the Great Bay Estuary had too much nitrogen and, as a result, cities and towns would need to spend close to $100 million to update their water treatment facilities.“We didn’t really envision ourselves in a legal court battle,” Dean Peschel, environmental consultant for Dover said. “But, we thought by having the best consultants we could get to look at it and tell us in a fair and objective view from them, ‘Is this something that we need to do or is there something else in the evaluation?’ And they told us that the evaluation was not a good one.”Dover hired Wright-Pierce Engineering to draft a design plan to decrease the nitrogen discharged from the plant. The proposed scientific plan proved decreasing nitrogen from 20 milligrams per liter to 8 milligrams per liter would address the troubled health of the estuary. However, once the federal Environmental Protection Agency and NHDES administered a National Pollutant Discharge Elimination Permit for Dover’s treatment facility requiring almost $100 million in upgrades to reduce the amount of nitrogen being discharged into the Great Bay Estuary to three milligrams per liter, the coalition filed suit.According to the court’s decision, the coalition claims the EPA used the impairment caused by the excess nitrogen to modify National Pollutant Discharge Elimination System permits issued to the coalition for the estuary previously. They said “that DES’ impairment finding directly influenced EPA’s permit modifications because water quality criteria determine the effluent limitations for specific pollutants in permits which are imposed by NHDES and USEPA.”DES disagreed, stating the Clean Water Act, a water quality criteria used to identify waters that need to reduce their amount of pollutants, requires each state to adopt its own standards for water quality. The court’s decision states that even though the state has authority to craft discharge permits, DES does not issue them. EPA issues all permits and DES adopts them as written.The court decision states this is a federal issue and the EPA would ultimately make the decision to harm the coalition and require them to update the water treatment facilities.The Great Bay Coalition believes they are entitled to a ruling by the court on whether the DES’ numeric criteria for nitrogen in the Great Bay Estuary is in fact a rule under state law.“The Coalition said that the development of numeric criteria was in itself a rule, that should have gone through a rule-making procedure and that is what we said should have been done,” said Environmental Attorney John Peltonen of Sheehan Phinney Bass & Green PA. “The document filed will ask to reconsider the judge’s decision and the position he took.”